Nexsen v. Nexsen.

some household furniture and wearing apparel, and a house and lot on Pearl street, the value of which is not given. She devised to her brother, George W. Nexsen, fifteen hundred dollars, to three nieces five hundred dollars each, and all the rest and remainder of her estate, real and personal, without stating its amount, she gave and bequeathed to her brother William, the executor, leaving other brothers and sisters, nephews and neices, ordinarily the object of affection and bounty, without any bequest whatever. The fact whether she had sufficient mind to dispose of her estate, is to be determined from testimony in direct conflict; is of great weight and strength against as well as in favor, and, to a court of review, of great difficulty of determination, without reference to the question of memory. Upon the question of memory, the contesting evidence is without contradiction. I do not propose to enter into a careful and critical analysis of the whole evidence in the case. The view I have taken of the case does not require it; though I admit the case, on the point of soundness of mind alone, is one in which, in my mind, the scale is nearly at an equipoise-so near that the onus of proof would change it from the one side to the other. The testatrix made the will in July, 1852, while living with her brother William. The will was in the handwriting of William. The execution of the will was proved by but one of the subscribing witnesses, the other being out of the State. This witness was procured by the executor, who was the only person present, except the witnesses, when they arrived. The will was not read by the witnesses, nor in their presence. The testatrix put her signature to the will in obedience to the directions of cne of the witnesses, both of whom were lawyers. After the signature, of the witnesses put the question to her, "Do you publish and declare this to be your last will and testament, and do you wish us to sign it as witnesses?" The executor paid the witnesses five dollars each for their services in witnessing the will. If the testatrix had mind and memory enough to make this will, and if it was her will, the execution of it was doubtless sufficient.

On the subject of the memory of the testatrix, one witness, the wife of her brother, Walter Nexsen, who had known her

Nexsen v. Nexsen.

sixty-two years and saw her as often as once a fortnight, sometimes stayed all day and all night, says, "Her memory was poor; I asked her about her friends, she had forgotten them all; I observed her memory was failing, and after she had the paralysis her memory was still more gone." This witness also testified to the state of her mind, which I do not insert.

Barbara Bogart, who, after testifying to her state of mind, says, "I don't think her memory was strong at any time; the death of her sister had a powerful effect upon her, it confused her." On cross-examination, she says, "for the last five years I could not bring myself to her recollection. I first discovered that she did not remember me at all about six years before she died... After the paralysis her mind failed her rapidly."

Catherine M. Nexsen, wife of one of the contestants, age fiftynine, had known testatrix from childhood of the witness, she testified as follows: "Katy (the other maiden sister) died in March, 1852. Sarah failed very rapidly after her sister's death, both mentally and bodily; the idea of her sister's death seemed to fill her mind. . . She seemed to lose her mind gradually altogether; she would sit alone, and walk up and down; she forgot her old friends; I would try to recall her old friends, and found she had forgot one after another, even her brother and sister; I observed that her failure of memory increased as she advanced in age." To the question put to her, "Was she, from your observation, from the death of Katy to the time of her own death, of sound mind and memory?" she answered, "She was not of sound memory certainly, and her mind was always weak." On further direct examination, she stated as follows: "Just after Katy's death she talked intelligently, her mind was not wandering or delirious at any time, she was oppressed at the idea of Katy's death; I was surprised that she forgot John, because Katy brought him up, and she left all his property to them; she forgot my children except my eldest daughter; this was not long ago-ten years." On further cross-examination: "The conversation about her brother John took place in the parlor of her brother William; I afterward referred to her brother John, but she had forgotten him; can't say how long before she went to her brother William's that I

ten years ago that I found she had forgotten my children; can't say whether it was before or after the paralytic stroke; it was when she lived at William's; some three or four years ago, I spoke of Florence, my daughter; she said 'who is she?' I told her; she asked whether it was a boy or a girl?"

These uncontradicted statements of the impaired memory of a person of naturally weak mind, so weak indeed as to render her capacity for making a will doubtful, I think did not have due consideration in the court below. Taking the question of memory into consideration in determining whether the testatrix was compos mentis, I think the weight of evidence was not fully regarded.

I am still less satisfied with the decision on the question of undue influence. Taking into view the state of mind and memory of the testatrix; the relationship between her and the principal legatee and devisee; the fact that this beneficiary was her agent, that she lived with and was supported by him; the form of the will, omitting to name any sum given to the respondent; the omission to name her blood relatives equally near to her; the fact that the will was drawn by and prepared by her said confidential agent, with no evidence of its being read to her, with no evidence of directions from her as to its dispositions; the agency of the respondent in obtaining legal witnesses to its execution but not to its preparation; his liberal gifts for such service to witnesses; these are a combination of circumstances creating not only great suspicion of unfairness, but are such constructive evidence of undue influence as casts upon the respondent the onus of proving fairness and integrity on his part, in relation to the instrument produced by him, which he claims to be her will and codicil. This, I understand to be a rule of law applying to all instruments creating estates in favor of a party standing in confidential relations with the person from whom the instrument is obtained. Whether it be attorney and client, agent and principal, physician and patient, pastor and parishioner, parent and child, brother and sisterwhatever the confidential relation may be where the influence that is obtained by habitual confidence, where the one is dependent or relies upon or reposes in the confidence of the

Nexsen v. Nexsen.

other, instruments obtained will be set aside as presumptively arising from the exercise of improper influence, and as being against propriety and public policy. In Evans v. Ellis, 5 Den. 640, a case in the court of errors, a security taken by a solicitor from his client was held to be presumptively void and unfair, and the onus of proving its fairness was on the solicitor. BEARDSLEY, J., said, "that no security given by a client to his solicitor should be allowed to stand in any case unless its fairness in every respect is shown by the solicitor." Judge STORY has said, "that the law, with a wise providence, not only watches over all transactions of parties in this predicament, but it often interposes to declare transactions void (Story Eq. Jur. § 315); and the rule is the same between principal and agent." Id. § 311.

In Sears v. Shafer, 6 N. Y. 268, Judge GRIDLEY sums up the whole doctrine as follows: "A court of equity interposes its benign jurisdiction to set aside instruments executed between persons standing in the relations of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations in which one party is so situated as to exercise a controlling influence over the will and conduct and interests of another. In some cases undue influence will be inferred from the nature of the transaction alone, in others from the nature of the transaction and the exercise of occasional or habitual influence." The following authorities are to the same effect. Howell v. Ransom, 11 Paige, 538; 10 Id. 352; 2 Den. 607; Hill on Trustecs, 156 to 162; Story Eq. Jur. §§ 308 to 324; 16 N. Y. 285; 13 Barb. 524; 31 Id. 9; 2 Beavan, 75; Simons, 539; 15 Ves. 120.

These, with a series of cases uniform in their tendency, are irresistible in their authority in casting the presumption against the good faith of this will and codicil; they not only throw the onus upon the respondent as to the state of the mind of the testatrix, but more than this, the onus is cast upon him of showing that this will was read to the testatrix, or that she dictated and understood its terms. He has failed to do this. The advantages of the will to him are so decided, that they must be held to cast this legal presumption of fraud and breach of confidence upon the respondent. He has not met

Niblo v. Binsse.

it. The law demands that where confidence is reposed, it must be faithfully acted on, and preserved from any intermixture of imposition. If influence over another is acquired, it must be kept free from taint of selfish interests and cunning and overreaching practices. Story Eq. Jur. § 308. The respondent has failed to relieve himself from this presumption.*

If this is a correct view of the legal presumption in this case, then, even the execution of the will fails of proper proof. I am, for these reasons, for reversing the judgment of the supreme court, and of the surrogate, admitting the will to probate. All the judges, except POTTER, J., concurred in affirmance. Judgment affirmed, with costs.

NIBLO v. BINSSE.

December, 1864.

Reversing 44 Barb. 54.

Where one party to an executory contract has, by his own act or default, prevented the other party from fully performing his contract, the party thus preventing performance cannot take advantage of his own act or default to exonerate himself from paying for what has been done under the contract.t

If the owner of a building contracts for labor upon it, he is under an implied obligation to have the building ready and in a condition to receive the labor contracted for; and if, before the work is completed, the building is destroyed by fire, without the fault of the contractor, the owner is in default, and the contractor can recover for all that was done up to the time of the fire.

William Niblo, as assignee of Anthony E. Hitchings, sued

* Compare Marvin v. Marvin, and Mason v. Ring, in this volume.

Compare Hooker v. Bank of Rochester, 30 N. Y. 83. See, also, Chase v. Hogan, 8 Abb. Pr. N. S. 57; Marsh v. Holbrook, in this vol.; and Howell v. Gould, vol. 2 of this series, p. 418.

As to freshets and frost, see N. II. & Northampton Co. v. Quintard, 6 Abb. Pr. N. S. 128; Worth v. Edmonds, 52 Barb. 40. As to fire, see Dexter v. Norton, 47 N. Y. 62; affirming 55 Barb. 272.